Accordingly, I find that defendant claimed "his privilege against self-incrimination" at least as to questions relating to the Frederick Industrial Loan Company as required by the above-mentioned statute as a basis for immunity.

As to the second point raised by the issues, namely whether the defendant was compelled to testify after having claimed the privilege against self-incrimination, I refer to the subpoena, the abovementioned statute which provides that no person shall be excused from testifying on the ground that his testimony may tend to incriminate him, the claim of privilege above referred to, the examiner's statement thereafter made that he was "going right ahead and proceed on it," and the fact that questions were subsequently propounded and answers given in relation to the Frederick Industrial Loan Company.

In respect of the issue that the claim was subsequently withdrawn, the attorney for the defendant stated that he withdrew his objection, apparently to requiring the witness to answer at all, and then stated that, "The witness will answer." Of course he was obliged to direct the witness to answer, in view of the provisions of the statute requiring him to answer, in return for which he obtained, under the statute, immunity from prosecution for or on account of any transaction, matter, or thing concerning which he was compelled to testify after having claimed his privilege against self-incrimination.

There was some colloquy between the attorney for the defendant and the examiner in which the attorney referred to the Murdock case (apparently United States v. Murdock, 284 U.S. 141, 52 S. Ct. 63, 64, 76 L. Ed. 210, 82 A.L.R. 1376) and said, ambiguously, "That is moot," and the examiner stated, ambiguously, "You have withdrawn it." Also there was a self-serving declaration by the examiner as to what the record would show as to his intentions, had "the claim been urged" (Tr. pp. 2030, 2031). I cannot spell out of this colloquy a withdrawal by defendant of the claim of privilege against self-incrimination. In addition, it should be noted that these statements occurred after defendant had given incriminating testimony.

The United States places reliance on United States v. Murdock, supra. That case, in my judgment, is inapplicable, because the witness therein "had in mind 'the violation of a State law and not the violation of a Federal law,'" which, under the ruling of that case, is insufficient to justify a refusal to answer, whereas in the case at bar there is no room for doubt that the defendant had in mind and feared prosecution under a Federal statute, namely the Securities Act of 1933, and that the inquiries were being made to discover evidence of its violation.

The foregoing views are further borne out by the whole tenor of the proceedings. Defendant was subpoenaed as a witness for the Commission in an administrative proceeding before it, and, without warning of any kind, found himself confronted by an inquisition determined to wring from him evidence on which to base a prosecution against him. He was first lulled into believing he was a government witness, and after 50 pages of testimony, suddenly became suspicious or aware that he was a prospective defendant. Any inartificiality or inexactitude in making the claim of privilege should be viewed in the light of these circumstances; and the record might well be construed to support the view that all subsequent questions of a similar character were embraced within the claim
*fn4"
unless the defendant is to be held to a rigid formalism.Defendant's testimony after the claim of privilege, covering approximately 300 pages, relates to transactions, matters, and things covered by the indictment. It was the examiner's duty, when defendant claimed this privilege, to determine from the character of the questions asked and the circumstances of the inquiry, whether there was a likelihood that the answers might be incriminating, and if there was such likelihood, it was his duty to determine whether he wished to exchange immunity for testimony. If he did not wish so to do, he should have stopped further inquiry. He elected to take the other course.

No question is raised as to the propriety of the plea under the authority of United States v. Murdock, supra, and it is doubtful whether such question properly could be raised, as the case at bar, unlike the Murdock case, is not yet at issue, the plea of not guilty having been withdrawn by leave of Court. Nor is any question raised by the parties as to a trial of the issues by the Court.

For the foregoing reasons, the Plea in Bar will be sustained, and judgment will be entered accordingly.

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